➥ CASE SUMMARY OF:
Joe-deb Ventures Limited & Anor v. Nigerian Deposit Insurance Corp. & Anor. (CA/B/136/2005, 21st day of May 2014)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Judgement on the undefended list;
Ample time to exercise fair hearing.
➥ CASE FACT/HISTORY
The respondent took out a Writ of Summons under the undefended list on 2nd day of April, 2004 (page 21 of record). The respondents’ claims against the appellants as defendants jointly and severally are:
(i) A sum of Forty-Six Million, Four Hundred and Twenty-Nine Thousand, Seven Hundred and Seventy-Four Naira and Eighty Kobo only (N46, 429,774.08) being debt owed to the plaintiffs by the defendants which the defendants have failed, refused or neglected to pay despite repeated demand.
(ii) An interest of 20.5% per annum from 1/4/2004 up to the date of judgment i.e. 17/06/2004.
(iii) An interest of 5% per annum on the total debt from the date of judgment until the total debt is finally liquidated.
By the order of the honourable trial Judge dated 1st day of June, 2004 (contained on page 1 of the record), the leave of the lower court was obtained by the respondent to enter the suit for leaving (return date) on 17th day of June, 2004 under the undefended list and the case was then adjourned to 17th day of June, 2004 for hearing.
In its judgment on the 17th day of June, 2004, the trial court granted all the claims of the respondents, jointly and severally against the appellants to the tune of N46,429,774.08 (Forty-Six Million, Four Hundred and Twenty-Nine Thousand, Seven Hundred and Seventy-Four Naira, Eighty Kobo only). There was no defence from the appellant.
The appellants who were the defendants at the High Court brought a motion on notice praying that the trial court:
(a) Set aside its own judgment given in the Suit on 17th June, 2004 on the ground that it was obtained by fraud.
(b) The appellants also sought that the court set aside the Writ of Summons marked “undefended” on the ground that it was irregular and was not properly served on the appellants and thereby ousting the jurisdiction of the court on the matter.
(c) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The trial Judge declared the judgment of the court delivered on 24/3/2004 as a judgment on merit unlike a default judgment; hence he had not the power to revisit, having become functus officio. And reasoned that the only remedy available to the appellant lay with the Court of Appeal. The trial judge concluded that the application lacks merit and therefore dismissed it.
The appellants being dissatisfied with the Ruling of the High Court dated 17th November, 2004 appealed to this Honourable Court vide a Notice of Appeal dated 22nd November, 2004 containing four grounds of appeal.
➥ ISSUE(S)
I. Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004 which was obtained by fraud and misrepresentation?
II. Whether the order of the lower court dated 1/6/04 which is Exhibit ‘D’ slating this case for hearing on 17th day of June, 2004 supersedes the 8 (eight) days period (as commanded by the Writ) within which the appellants should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[JUDGEMENT IRREGULARLY OBTAINED DESPITE ON MERIT ON THE UNDEFENDED LIST CAN BE SET ASIDE
‘To this assertion, I am in complete disagreement, in as much as I agree that a judgment obtained under the undefended list is a judgment on the merits or final judgment and once the judgment has been entered in favour of the plaintiffs, it means that the case has come to an end, the court becomes functus officio, this is only to the extent that such judgment is not irregularly obtained, if it is, that court that gave the judgment may set it aside. Also, the defendants seeking to set aside the judgment must come by way of motion on notice specifying in the affidavit attached, the nature of the irregularity, how it arose and disclosing a defence on the merits. See: Bendel Construction Co. Ltd. Vs. Anglo Development Co. (Nig.) Ltd. (1992) ALL NLR (pt. 1) p.25.
Though, the Supreme Court held a similar view in Ben Thomas Hotel Ltd. Vs. Sebi Furniture Ltd. (1989) 5 N.W.L.R. (pt. 123) 523.’
THERE WAS IMPROPER SERVICE ON THE APPELLANT/DEFENDANT
‘The respondents never disputed the fact that service was effected on one Oriloye Suleiman, a storekeeper for the 1st appellant (a company) at an address different from the registered address contrary to Section 78 Companies and Allied Matters Act (CAMA). And also that whereas the service on the said Oriloye Suleiman could at best be labeled as an improper service, the second appellant could not be said to have been served at all as envisaged by the following provisions of Ondo State rules of High Court, 1987, thus:
Order 12 Rules 2 “Save as otherwise prescribed by any of these rules, an originating process shall be served permanently by delivery to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original thereof.”
Order 12 Rule 8 “When the suit is against a corporation authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served, subject to the enactment establishing such corporation or company or under which it is regulated, as that case may be by giving the same to any director, secretary, or other principal officer, or by leaving it at the office of the corporation or company.”
Undoubtedly, it cannot be said for the respondents that these provisions were adhered by strictu-sensu even assuming that they were unable to effect personal service, Order 12 Rule 8 of the Ondo State Rules of the High Court 1987 offers a way out by way of substituted service. In effect, it cannot be said that the respondents had fully satisfied this all important condition precedent before the commencement of action, answer to my mind is in the negative. Accordingly, Issue 1 is resolved in favour of the appellants and against the respondents.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[AMPLE TIME WAS NOT AVAILED TO THE APPELLANT/DEFENDANT TO EXERCISE FAIR HEARING
‘When a case entered on the undefended list comes to the court on the return date, the court has the duty to ensure that the defendant has filed a notice of intention to defend and an affidavit of defence. It is when the court has exhausted itself of this duty of proper service and ample opportunity of response in accordance with the principle of fair hearing, in line with the latin maxim of ‘Audi Alterem patem’ that the court in the absence of a defence may proceed to judgment.
It is my considered opinion that though the respondents may have good grounds for instituting the cause of action at the trial court, ample time could not be said to have been availed to the appellants to respond adequately to the suit, thereby denying them the opportunity of exercising their right of fair hearing. In any case, I accordingly resolve this issue in favour of the appellants and against the respondents.’]
.
.
.
✓ DECISION:
‘Now having found merit in this appeal, I hereby allow the appeal and set aside the Ruling of the lower court in this case. I also set aside the judgment delivered by the lower court on the 17th day of June, 2004. In the interest of substantial justice of this case, I also order that a retrial to try the main issue with proper service duly effected. I also order that the appellants be paid the cost of this appeal which I have fixed at N50,000.00. I also direct that the costs in the court below should abide the event.’
➥ FURTHER DICTA:
⦿ JUDGEMENT GIVEN WITHOUT JURISDICTION CAN BE SET ASIDE BY THAT SAME COURT
Also, as in this instant case, that a court has also inherent power to set aside its own judgment which is a nullity such as where it acted without jurisdiction. In the case of Rossek vs. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) @ p. 471, Bello, (as he then was) observed thus: “…A judgment of a court of law remains valid and effective unless it is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party.” — S. D. West JCA.
⦿ IMPROPER SERVICE GOES TO JURISDICTION OF THE COURT
There is no doubt the proper service of the writ or other initiating process is one major factor that may vitiate a judgment. See Madukoku vs. Nkemdilim (1962) 1 ALL NLR 587, 595; Skenconsults Nig. Ltd. & Anor vs. Ukey (1981) 1 S.C. 6; Okoye vs. Central Point Merchant Bank (supra) @ 268. A judgment obtained against a party who was never served with initiating process is void. Also, non-service is a product of jurisdiction and the issue of jurisdiction being the life blood of adjudication can be raised at any time in the proceedings ever on appeal at the Supreme Court and even suo motu. In the Ruling by the trial court on 17th November, 2004, the trial Judge was of the view that the points raised by the appellants’ counsel on the issue of service were not worthy of consideration. In my honest opinion, the issues are the very fulcrum on which the case lay, having explained earlier as the life blood of any adjudication. — S. D. West JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Sotonye Denton West, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
G. O. Omoetu.
⦿ FOR THE RESPONDENT(S)
O. Agbonika.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHERE A WRIT COMMANDS WHEN TO ENTER APPEARANCE, JUDGEMENT CANNOT BE ENTERED BEFORE THE EXPIRATION OF THE STATED TIME
In Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (1999) 2 NWLR (pt. 590) p.228 and Akpabuyo vs. Duke (2001) 7 NWLR (pt. 713) p. 557, the courts have held that where the writ commands the defendant to enter an appearance within a limited time, though the writ is marked undefended list, judgment cannot be entered in the suit or arguments considered before the expiration of the period stipulated on the writ.
⦿ THE DEFENDANT MUST BE PREPARED TO FILE HIS DEFENCE BEFORE THE DATE FIXED FOR HEARING
In the case of Crown Merchant Bank Ltd. Vs. Leadway Assurance Co. Ltd. (1997) 11 NWLR (pt. 529) 405; Bullet Int. (Nig.) vs. Adama (1997) 3 NWLR (pt. 493) 348 the courts held that the defendant must be prepared to file his defence at least five days before the day fixed for hearing. By the defendant’s entry of appearance, he indicates his willingness to contest the action and that he also submits to the jurisdiction of the court. This also serves as a proof that the writ has been served.
➥ REFERENCED (OTHERS)
